Opinion
No. CV 07 5011897S
June 3, 2008
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT #105
On October 17, 2007, the defendant, AIG Premier Insurance Co., filed a motion for summary judgment, with a memorandum in support, on the grounds that there is no genuine issue of material fact that the plaintiff is not entitled to underinsured motorist benefits because the tortfeasor's insurance coverage, provided by the liability insurance of Horizon Cab Co. Inc. (Horizon), is equal to the underinsured motorist coverage available to the plaintiff pursuant to Antoinette Garisuolo's insurance policy. The plaintiff filed a memorandum in opposition on January 7, 2008. On January 9, 2008, the defendant filed a Reply to the Plaintiff's Objection. The parties argued their respective positions at Short Calendar before this court on February 25, 2008. For reasons more fully set forth in this Memorandum of Decision the court grants the defendant's motion for summary judgment.
On June 18, 2007, the plaintiff, Americo Carchia, conservator for the estate of Alfredo Teta, filed a one-count complaint against the defendant. In that complaint, the plaintiff alleges that on April 4, 2006, Alfred Teta was a passenger in a parked vehicle owned by Garisuolo when he was struck by a vehicle operated by Anthony Salem and owned by Horizon. The plaintiff furthers alleges that Teta was severely injured when Salem crashed into Garisuolo's parked vehicle. And, the plaintiff claims that as a passenger in Garisuolo's vehicle, he is entitled to underinsured motorist benefits under Garisuolo's insurance policy with the defendant pursuant to General Statutes § 38a-336.
In its memorandum in support, the defendant asserts that Garisuolo's underinsured motorist policy with the defendant covers up to $300,000 per accident, but only $100,000 per person. The defendant also asserts that Horizon's liability insurance covered $100,000 total for the entire accident. The defendant argues that the plaintiff's claim for underinsured motorist benefits against the defendant must fail because the amount available to the plaintiff under Horizon's liability insurance is equal to the amount available to the plaintiff under Garisuolo's policy. To support this motion, the defendant submitted a copy of its responses to the plaintiff's interrogatories and requests for production and Horizon's responses to the plaintiff's interrogatories and requests for production in the case of Carchia v. Salem, Superior Court, judicial district of New Haven, Docket No. CV 07 5008342.
While the plaintiff does not contest that Teta is eligible to receive payments of up to $100,000 under both Garisuolo's underinsured motorist policy and Horizon's liability insurance, he argues that since both Garisuolo and Teta have legitimate claims to the $100,000 available under Horizon's policy, it is unlikely Teta will receive the full $100,000 in benefits. The plaintiff contends that this creates a question of material fact as to whether a full $100,000 is available to Teta under Horizon's policy, and whether Garisuolo's policy with the defendant will have to make up the difference. In support of his memorandum in opposition, the plaintiff attached Garisuolo's complaint against Salem and Horizon and the same Horizon discovery responses as the defendant.
Although none of the documents cited by the parties are properly authenticated, since neither party has objected to the documents used in this case, the court will consider them in deciding the motion for summary judgment. While "only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment[,]" New Haven v. Pantani, 89 Conn.App. 675, 678-79, 874 A.2d 849 (2005); parties may "knowingly waive compliance with the procedural provisions of the Practice Book relating to motions for summary judgment." Krevis v. Bridgeport, 262 Conn. 813, 824, 81 A.2d 628 (2003). Courts have generally "considered unauthenticated documents in deciding a motion for summary judgment when both parties relied on the same documents and neither party objected to the other party's use of the documents." Levine v. Sterling, Superior Court, judicial district of Windham, Docket No. CV 07 4005295 (September 18, 2007, Martin, J.).
General Statutes § 38a-336 provides in relevant part: "(e) . . . an `underinsured motor vehicle' means a motor vehicle with respect to which the sum of the limits of liability under all bodily injury liability bonds and insurance policies applicable at the time of the accident is less than the applicable limits of liability under the uninsured motorist portion of the policy against which claim is made under subsection (b) of this section."
§ 38a-336(b) provides in relevant part: "An insurance company shall be obligated to make payment to its insured up to the limits of the policy's uninsured and underinsured motorist coverage after the limits of liability under all bodily injury liability bonds or insurance policies applicable at the time of the accident have been exhausted by payment of judgments or settlements, but in no event shall the total amount of recovery from all policies, including any amount recovered under the insured's uninsured and underinsured motorist coverage, exceed the limits of the insured's uninsured and underinsured motorist coverage."
"[U]nderinsured motorist benefits are not recoverable under our statutory scheme unless the limits of the underinsured motorist coverage available to the claimant exceed the total amount of liability insurance available to satisfy claims against the tortfeasor." Florestal v. Government Employees Ins. Co., 236 Conn. 299, 304, 673 A.2d 474 (1996). In Florestal, the Supreme Court explained that "the legislative objective was simply to give an insured who is injured in an accident the same resource he would have had if the tortfeasor had carried liability insurance equal to the amount of the insured's uninsured motorist coverage." (Internal quotation marks omitted.) Id., 306.
In considering a very similar factual situation, the appellate court held that, "by purchasing split underinsured motorist coverage of $100,000 per person and $300,000 per accident, the plaintiff here did not purchase more coverage than that provided by the tortfeasor's liability policy; instead, he simply purchased the same coverage for more people. Under any circumstances, however, there would be available to the plaintiff — or each of his passengers, if any — $100,000 of underinsured motorist coverage, which is the same as, and not more than, the amount of the liability coverage available to each of them under the tortfeasor's policy. Thus, where, as in the present case, the tortfeasor has $100,000 in liability insurance, the plaintiff's split underinsured motorist coverage does not convert an otherwise nonunderinsured vehicle into an underinsured vehicle." Doyle v. Metropolitan Property Casualty Ins. Co., 252 Conn. 79, 89-90, 743 A.2d 156 (1999).
And, contrary to the plaintiff's argument, the Supreme Court has concluded that "the purpose of underinsured motorist coverage is neither to guarantee full compensation for a claimant's injuries nor to ensure that the claimant will be eligible to receive the maximum payment available under any applicable policy. Indeed, underinsured motorist protection is not intended to provide a greater recovery than would have been available from the tortfeasor . . . Rather, [t]he public policy of § 38a-336 is to give a personal injury claimant access to insurance protection to compensate for the damages that would have been recoverable if the underinsured motorist had maintained an adequate policy of liability insurance." (Emphasis in original; citation omitted; internal quotation marks omitted.)" Florestal v. Government Employees Ins. Co., supra, 236 Conn. 310.
The parties in this case do not dispute that the plaintiff is eligible to recover up to $100,000 under Horizon's liability insurance if Horizon, or its driver Salem, is found liable for the accident. The parties also do not dispute that under Garisuolo's policy with the defendant, the plaintiff is eligible to recover up to $100,000 in underinsured motorist benefits. As a result, the plaintiff is not entitled to underinsured motorist benefits because the total amount of underinsured motorist benefits available to the plaintiff does not exceed Horizon's liability coverage.
In deciding the motion for summary judgment, it does not matter whether the plaintiff will recover the full $100,000 under Horizon's liability insurance. "The fact that [the tortfeasor's] liability coverage has . . . been exhausted because of multiple claims does not change the effect of the statute in activating uninsured motorist coverage only when the liability insurance of the tortfeasor is less in amount." (Emphasis in original; internal quotation marks omitted.) Id., 306. Since the underinsured motorist coverage equals the alleged tortfeasor's liability coverage, the plaintiff has no recourse against the defendant under Garisuolo's policy.
The plaintiff has presented no evidence that Garisuolo's policy is "underinsured motorist conversion coverage" pursuant to General Statutes § 38a-336a. "This option, which is available for an additional premium to consumers who wish to purchase it in lieu of standard underinsured motorist coverage under § 38a-336, provides enhanced protection to victims of underinsured motorists because, in contrast to coverage under § 38a-336, it is activated when the sum of all payments received by or on behalf of the covered person from or on behalf of the tortfeasor are less than the fair, just and reasonable damages of the covered person." (Emphasis in original; internal quotation marks omitted.) Florestal v. Government Employees Ins. Co., supra, 236 Conn. 307.
For the foregoing reasons, the court grants the defendant's motion for summary judgment because there is no genuine issue of material fact that the plaintiff is not entitled to underinsured motorist benefits under Garisuolo's policy with the defendant.